Category: Race

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Ministerial Exception Part II

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

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UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Articles

Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


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(A few reasons) why Angela Onwuachi-Willig should be appointed to the Iowa Supreme Court

Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

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Gender Justice and Indian Sovereignty

It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.” Read More

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Bright Ideas: Chamallas and Wriggins on The Measure of Injury

The Measure of InjuryToday’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read More

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Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read More

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College Preparedness, Law, and the Structure of Standards

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

Read More

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Guns & Katrina, Reconsidered

Remember when post-Katrina New Orleans turned into a teaching moment about the importance of using guns to protect yourself?  Over at the VC, David Kopel wrote (on September 5, 2005)

“Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen’s arrest and detention isn’t possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.”

The necessity of shooting looters was widely-discussed.  Kerr, Solove, Volokh, Muller and I all dissented.  It’s worthwhile, then, to read this article looking back five years later at what actually happened after the hurricane:

“The narrative of those early, chaotic days — built largely on half-baked anecdote and unfounded rumor — quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.

“As you look back on it, at the time it was being reported, it looked like the city was under siege,” said Russel L. Honoré, the retired Army lieutenant general who led military relief efforts after the storm.

Today, a clearer picture of post-Katrina violence is emerging, and it is an equally ugly one, including white vigilante violence, police killings, official cover-ups and a suffering population far more brutalized than many were willing to believe. Several police officers and a white man accused of racially motivated violence have recently been indicted in various cases, and more incidents are coming to light as the Justice Department has started several investigations into poststorm civil rights violations . . .

“One case is that of a former Algiers resident, Ronald J. Bourgeois Jr., who is white and accused of being part of one of the vigilante groups. He was recently indicted by the federal government on civil rights charges in the shooting of three black men who were trying to leave the city. According to the indictment, Mr. Bourgeois, who now lives in Mississippi, warned one neighbor that “anything coming up this street darker than a brown paper bag is getting shot.””

I don’t mean to blame any of the bloggers (like Glenn Reynolds or David Kopel) who called for looters to be shot on sight.  Obviously, they were writing about the facts as they knew them.  But the retrospective story is a sobering reminder that unleashing private violence – and encouraging armed self-help – doesn’t necessarily lead to the restoration of civic order.  It may, as it turns out, result in biased, erroneous, decision making and awful tragedy.

“Punishing the Poor” and “Texas Tough”

Many legal scholars wonder why even small steps toward sentencing reform are tough to make. The US has an extraordinary level of incarceration; “with about 1.6 million people in our penitentiaries and an additional 800,000 in our jails, the United States locks up its citizens at a higher rate than any other country in the world.” Are we simply worse people, or are there larger causes at work? I recently noticed two books that help frame the issue of US criminal justice in a larger context of economic change and inequality.

Loic Wacquant’s Punishing the Poor: The Neoliberal Government of Social Insecurity proposes that the “hyperinflation” of the US prison population results from a change in the state’s focus: from promoting economic security to promoting physical safety via a “zero tolerance” policy for even nonviolent offenses. As one reviewer explains,

The penal state, in Wacquant’s telling, has mushroomed up to take the place of the welfare regime, to control those populations at the margins of the market economy. In their classic book Regulating the Poor (1971), sociologists Frances Fox Piven and Richard Cloward argue that welfare rolls fluctuate in response to social unrest, swelling when the poor become politically aware and more difficult to pacify. Wacquant takes their claim a step further, suggesting that in a neoliberal age, poor people are not bought off—they are locked up.

According to Wacquant, media and law enforcement elites team up to “erect[] a garish theater of civic morality on whose stage political elites can orchestrate the public vituperation of deviant figures. . . .and close the legitimacy deficit they suffer when they discard the established government mission of social and economic protection.” Like the “security theater” lambasted by some anti-terrorism experts, the penal system explored by Wacquant is “about” far more than its stated purpose of keeping good citizens safe. Rather, it becomes what Wacquant calls “autophagous,” provoking a self-renewing cycle of recidivism, widening insecurity, and ever more crackdowns, by virtue of its very brutality. The book reminded me of Niklas Luhmann‘s social theory of “autopoetic systems,” which constitute and reconstitute themselves according to an inner logic that may have little to do with the overall health or welfare of society.

I was reminded of Wacquant’s book when I heard an extraordinary C-Span lecture by Robert Perkinson, the author of Texas Tough: The Rise of America’s Prison Empire. I’ve previously speculated on why Texas is such a darling of the Wall St. Journal editorial page, and Perkinson’s book helps piece together more clues on the state’s role in modeling penitentiary policies for the nation. Like Wacquant, Perkinson focuses on the role of race and inequality in explaining prison demographics:

More than half a century ago, at the height of Jim Crow, African Americans were going to prison at roughly four times the rate of whites; now the black imprisonment rate is seven times that of whites. If present trends continue, a third of all black men can expect to go to prison at some point in their lives. Millions more, due to felony disenfranchisement, will lose the right to vote, one of the dearest prizes of the black freedom struggle. My book, Texas Tough, is an attempt to reckon with . . . the bleak reality of persistent prejudice and unequal justice. . . . [T]he book homes in on the entwined histories of racism and the law, uncovering the origins of America’s exceptionally harsh approach to criminal justice in the broken promises and iniquitous profits of the young republic.

Texas Tough . . . relates the troubled life story of a single southern prison system, one that started out with the construction of a pine-log barracks in 1842 and that has grown into the largest, harshest incarceration complex in the United States. It describes how a plantation-based penal system, long dismissed as a brutish backwater, managed to become a pacesetter in hardline prison management; how a retributive ethos of criminal justice that developed on slavery’s frontier eventually took hold nationwide. . . . In short, it explains how the land of the free became the most incarcerated society in the history of democratic governance.

Perkinson describes the remarkable role of slave and quasi-slave labor in Texas; as I recall from his lecture, the state capitol building was first built with slave labor, and then after it was burned down during the Civil War, it was re-built with “leased convicts.” Apparently there are also farms in Texas with crops which have never been picked with “free labor;” they transitioned from slave plantations to leased convicts to prison labor. Both facts haunted me as I recently visited UT Austin for a health law conference, with the capitol building often in sight.

Both Wacquant’s and Perkinson’s book focus on how one system of punishment can rapidly become a “model.” For Perkinson, Texas displaced more humane models of rehabilitation to become a model of “getting tough” on prisoners. Wacquant worries that the resulting US system of punishment has become a model for the EU, providing parties of the right with a new model for social order that parties of the left feel powerless to critique or resist. Both authors’ theories of “contagion” reminded me of two recent works; Spencer Waller’s The Law and Economics Virus and Joe White’s treatment of stories in his work on health care finance. Building on models of memes from Dawkins and Balkin, Waller shows how certain fields are uniquely susceptible to legal economic modeling, and others have inherent structural features that resist it. Joe White shows how “herd behavior” can follow mass adoption of certain stories about efficiency and effectiveness, often in the absence of compelling information about their results:

The most striking aspect of the accounts of market behavior in health care in the 1990s is that activity appears to have been influenced by shared stories, which rose, fell, and were changed in the health policy and business communities. . . . The free flow of capital did not serve health care values such as cost control and access. . . . Behavior followed stories that in significant cases turned out to be untrue. The health care herd stampeded in one direction and then another.

The prison policy stampede appears to only be going in one direction, but may end up no more effective than the managed care merry-go-round of the 1990s (except, of course, for producing profits). My sense is that anyone who opposes prison reform will have to reckon with Wacquant’s and Perkinson’s arguments.